Wasatch Electric v. Labor Commission

2020 UT App 20
THE UTAH COURT OF APPEALS
WASATCH ELECTRIC DYNALECTRIC C OMPANY AND
A MERICAN C ASUALTY C OMPANY OF R EADING, PA,
Petitioners,
v.
LABOR C OMMISSION AND WENDELL BENWARD,
Respondents.
Opinion
No. 20190398-CA
Filed February 13, 2020
Original Proceeding in this Court
Brad J. Miller and Trent D. Holgate, Attorneys
for Petitioners
Gary E. Atkin and K. Dawn Atkin, Attorneys for
Respondent Wendell Benward
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and DIANA H AGEN concurred.
HARRIS, Judge:
¶1 	Wendell Benward was electrocuted while maintaining
electrical power lines. He survived, but his injuries were so
severe that doctors found it necessary to amputate both of his
feet. Because of his injuries, Benward qualified for and received
workers’ compensation benefits. Despite his injuries, however,
Benward eventually was able to go back to work, albeit in a
different 	capacity. 	His 	former 	employer, 	Wasatch 	Electric
Dynalectric Company (Wasatch), does not think it should have
to pay Benward permanent total disability benefits for time
periods in which Benward was able to work. Under applicable
Utah law, Wasatch’s argument would be a winner with regard to
most 	injured 	workers, 	who 	ordinarily 	lose 	eligibility 	for
permanent total disability benefits if they are able to return to

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work. But Utah law carves out an exception for workers who
have lost limbs or eyes in a workplace accident, and considers
such workers permanently disabled and entitled to permanent
total disability benefits even if they are later able to return to
work. We therefore reject Wasatch’s arguments, and decline to
disturb the decision of the Labor Commission (the Commission),
which ordered Wasatch to continue to pay benefits to Benward
and 	refused 	to 	allow 	Wasatch 	to 	offset 	the 	wages 	it 	paid
Benward post-accident.
BACKGROUND1
¶2 	On July 23, 2012, Benward was working as part of a team
tasked 	with 	maintaining 	a 	set 	of 	electrical 	power 	lines.
According to Benward, the team was transporting a large pole
when Benward observed that the grounded pole was too close to
a live power line. Benward rushed over to help, but tripped and
twisted his ankle just before reaching them. As he regained his
footing, electricity suddenly arced between the pole and the
nearby 	power 	line. 	Somehow, 	the 	electricity 	jumped 	to
Benward’s left arm, and the current passed through his body
and exited through both of his feet, causing significant injury.
¶3 	Benward was evacuated from the scene by helicopter and
taken to a hospital, where doctors determined that his injuries
required 	the 	amputation 	of 	both 	feet. 	The 	amputation 	was
performed that same day. In addition to the loss of his feet,
Benward also suffered second- and third-degree burns over
much of his upper body, as well as hearing loss, sleep apnea,
1. 	“We 	state 	the 	facts 	and 	all 	legitimate 	inferences 	drawn
therefrom in the light most favorable to the agency’s findings.”
ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶ 2 n.1, 211
P.3d 382 (quotation simplified).

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20190398-CA 	3 	2020 UT App 20
tinnitus, meniscus tears in both knees, and memory loss, among
other ailments.
¶4 	After nearly a year, Benward recovered sufficiently to
return to work on a part-time basis, although not in the same
capacity. With some retraining, Benward was able to work as a
safety manager, and he performed those duties for Wasatch on a
part-time 	basis 	for 	a 	few 	months. 	Then, 	in 	January 	2014,
Benward 	was 	able 	to 	increase 	his 	hours 	to 	full 	time, 	and
continued to work as a full-time safety manager until Wasatch
laid him off, for unrelated reasons, in January 2017. After being
laid 	off, 	Benward 	was 	eventually 	able 	to 	find 	similar
employment as a safety professional at an electrical engineering
company 	specializing 	in 	high-voltage 	power 	installation.
Although the work is inconsistent and the wages and benefits
are project-dependent, Benward now earns a weekly wage that
is even higher than the wage he earned at Wasatch.
¶5 	In addition to the part-time and full-time salary Benward
has earned 	since 	the 	date 	of 	the 	accident, 	Wasatch 	(or 	its
insurance company) also paid Benward workers’ compensation
benefits. Beginning on the day following the accident, Wasatch
paid Benward temporary total disability benefits until Benward
was 	able 	to 	resume 	part-time 	work. 	While 	Benward 	was
working part-time, Wasatch paid Benward—in addition to his
part-time wages—temporary partial disability benefits. After
Benward 	resumed 	full-time 	employment, 	Wasatch 	paid
Benward permanent partial disability benefits, based on a forty-
nine 	percent 	whole 	person 	impairment 	rating, 	until 	it 	laid
Benward off in 2017. In total, Wasatch paid Benward $130,818.68
in various types of workers’ compensation benefits between the
date of his accident and the date he was laid off.
¶6 	In March 2017, after being laid off, Benward filed a claim
for permanent total disability benefits stemming from the loss of
both of his feet. In this claim, Benward asserted that he was

Wasatch Electric v. Labor Commission
20190398-CA 	4 	2020 UT App 20
entitled to continuing permanent total disability benefits from
the date of his accident, and continuing for the rest of his
life, regardless of the fact that he was able to return to work
after the accident as a safety manager. In response, Wasatch
acknowledged that Benward met the criteria for permanent total
disability under Utah’s workers’ compensation statute, given the
amputation of both of his feet, and that he should receive
benefits for the time periods in which he was fully or partially
unable to work. However, Wasatch asserted that Benward was
not entitled to permanent total disability benefits once it was
demonstrated that he was again capable of gainful employment.
¶7 	An administrative law judge (ALJ) ruled in favor of
Wasatch, 	determining 	that 	Benward’s injury 	created 	only 	a
“presumptive finding” that he was permanently and totally
disabled, and that this presumption was rebutted by the fact that
Benward had returned to work. The ALJ concluded that Wasatch
was not obligated to pay Benward permanent total disability
benefits during periods in which he was gainfully employed.
¶8 	Benward appealed the decision to the Commission, which
reversed the ALJ’s legal determination, concluding that Benward
was entitled to permanent total disability benefits even after
returning to work, and stating as follows:
The 	Commission 	recognizes 	that 	awarding
permanent 	total 	disability 	compensation 	to 	Mr.
Benward 	for 	a 	period 	during 	which 	he 	was
working 	may 	seem 	counterintuitive; 	however,
neither gainful employment nor the ability to work
are part of the criteria under § 413(9) as they are
under 	§ 	413(1). 	The 	unique 	criteria 	found 	in
§ 413(9) provide for a final award of permanent
total disability compensation without regard for or
consideration 	of 	the 	claimant’s 	interim 	work
following the loss described in that subsection.

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However, the Commission noted that Benward would not be
entitled to permanent total disability benefits during the time he
worked for Wasatch, if his wages had not really been earned but
had merely been “intended to be paid in lieu of disability
compensation.” The Commission remanded the case back to the
ALJ for a factual determination about whether the money paid to
Benward while he was employed by Wasatch post-accident was
“intended 	as a 	substitute 	for 	disability 	compensation 	or 	as
regular compensation for the work performed.”
¶9 	On remand, the ALJ found that Benward “was paid
during the relevant time period for actual work for which [he]
earned the wages he was paid,” that his job “was not a make-
work job” and “was legitimate and not just to avoid permanent
total disability benefits,” and that Benward “gave a dollar’s
worth of labor for every dollar he was paid.” The Commission
affirmed the ALJ’s factual findings, and concluded that Wasatch
acquired an ongoing obligation to pay Benward permanent total
disability 	benefits 	starting 	on 	the 	date 	of 	his 	accident 	and
continuing for the remainder of Benward’s life, and 	that—
although Wasatch was entitled to an offset for the $130,818.68
that it had already paid Benward for other types of workers’
compensation benefits—Wasatch was not entitled to an offset for
what it had paid him in wages after the accident.
ISSUE AND STANDARD OF REVIEW
¶10 	Wasatch now seeks judicial review of certain aspects of
the Commission’s order. Wasatch does not seek judicial review
of any factual findings made by the ALJ or the Commission, and
does not dispute the fact that it has a workers’ compensation
obligation to Benward for at least the time periods in which
Benward was unable to work due to his injuries. However, it
asserts that it has no obligation to pay permanent total disability
benefits to Benward during periods of time in which Benward
was or is gainfully employed, and that it should be entitled to

Wasatch Electric v. Labor Commission
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offset the wages it paid to Benward post-accident against its
workers’ compensation obligation to Benward. Thus, the issues
Wasatch raises in this case are legal in nature, and involve the
meaning and interpretation of Utah’s workers’ compensation
statutes. In this context, we review the Commission’s legal
determinations for correctness. See Esquivel v. Labor Comm’n, 2000
UT 66, ¶ 13, 7 P.3d 777 (stating that “[m]atters of statutory
construction 	are 	questions 	of 	law 	that 	are 	reviewed 	for
correctness” (quotation simplified)); see also Intermountain Slurry
Seal v. Labor Comm’n, 2002 UT App 164, ¶ 4, 48 P.3d 252 (stating
that, when reviewing the Commission’s resolution of a question
of law, we give “no deference” to the “agency’s determination,
because the appellate court has the power and duty to say what
the law is and to ensure that it is uniform throughout the
jurisdiction” (quotation simplified)).
ANALYSIS
¶11 	For most injured workers—those who have not lost limbs
or 	eyes—permanent 	total 	disability 	benefits 	under 	Utah’s
workers’ compensation statutes are available only if the worker
proves, by a preponderance of the evidence, the existence of six
elements: (1) that he “sustained a significant impairment” as a
result of a work-related injury; (2) that he “is not gainfully
employed”; (3) that he has an impairment that limits his “ability
to 	do 	basic 	work 	activities” 	and 	(4) 	prevents 	him 	from
“performing the essential functions of the work” for which he
was qualified prior to his accident; (5) that he “cannot perform
other work reasonably available”; and (6) that “the industrial
accident 	or 	occupational 	disease 	is 	the 	direct 	cause 	of 	the
employee’s 	permanent 	total 	disability.” 	See 	Oliver 	v. 	Labor
Comm’n, 2017 UT 39, ¶ 15, 424 P.3d 22 (quoting Utah Code Ann.
§ 34A-2-413(1)). In this case, given that he is now able to work
full-time, and has been since at least 2014, Benward cannot meet
this test, and does not argue that he can.

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¶12 	Instead, Benward points to subsection (9) of that same
statutory provision, and asserts that there exists a second and
alternative path to proving permanent total disability, one that
exists only for workers who sustained a catastrophic injury
involving the loss of limbs or eyes, and one that does not
consider whether the worker can return to work. That provision
reads, in its entirety, as follows:
(a) The loss or permanent and complete loss of the
use 	of 	the 	following 	constitutes 	total 	and
permanent 	disability 	that 	is 	compensated
according to this section:
(i) 	both hands;
(ii) 	both arms;
(iii) 	both feet;
(iv) 	both legs;
(v) 	both eyes; or
(vi) 	any combination of two body members
described in this Subsection 9(a).
(b) A 	finding 	of 	permanent 	total 	disability
pursuant to Subsection 9(a) is final.
Utah Code Ann. § 34A-2-413(9) (LexisNexis 2019).2
¶13 	We have interpreted this statutory subsection once before,
in Intermountain Slurry Seal v. Labor Commission, 2002 UT App
164, 48 P.3d 252. In that case, we noted that Utah’s workers’
compensation 	statute 	sets 	forth 	“two 	avenues” 	that 	are
“available for an employee to demonstrate the existence of a
permanent, totally disabling condition.” Id. ¶ 7. Under the first
avenue, set forth in section 34A-2-413(1) of the Utah Code, the
2. Because the relevant sections of the statute have not changed
since the date of the administrative proceeding in question, we
cite the current version of the Utah Code for convenience.

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injured worker must meet the six-part test discussed above. Id.
The second avenue, set forth in subsection (9) of that same
statute, is available only to workers who have lost two limbs or
eyes, and under that avenue the worker does not have to make
the six-part showing detailed in subsection (1). Instead, “if an
employee suffers one of the combination of injuries articulated in
subsection [(9)],[3] there is a conclusive presumption that the
employee is permanently and totally disabled.” Id. ¶ 9. Indeed,
we stated that “[o]ur reading of the plain language of subsection
[(9)] evidences a clear intent to separate the injuries enumerated
under subsection [(9)] from other injuries that may also result in
an award of permanent total disability benefits.” See id. ¶ 11; see
also id. ¶ 14 (stating that “the legislature carefully [chose] to
immunize subsection [(9)] claims from the rigorous requirements
applied to all other [workers’ compensation] claims”). We noted
that workers attempting to use the subsection (9) avenue in
proving that they suffered a permanent total disability “need
show nothing more than the existence of an injury listed within
subsection [(9)] and that the injury was the result of an industrial
accident,” 	and 	that 	such 	an 	employee 	“is 	not 	required 	to
establish that he is totally disabled as all other claimants are
required to do pursuant to” subsection (1). Id. ¶ 11.
¶14 	Moreover, we emphasized that a subsection (9) claimant’s
entitlement to permanent total disability benefits is final, and not
3. In Intermountain Slurry Seal v. Labor Commission, 2002 UT App
164, 48 P.3d 252, we refer to “subsection (10)” as the relevant
subsection. Since our opinion in Intermountain Slurry Seal, the
legislature 	removed 	one 	of 	the 	earlier-listed 	statutory
subsections, 	rendering 	the 	former 	subsection 	(10) 	now
subsection (9), and when quoting Intermountain Slurry Seal, we
use 	the 	current 	subsection 	number. 	The 	relevant 	statutory
language, 	although 	now 	numbered 	differently, 	remains
substantively unchanged.

Wasatch Electric v. Labor Commission
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“subject to the same rehabilitation provisions as a disability
finding under subsection (1).” Id. ¶ 10. “Once a subsection [(9)]
claimant has established a qualifying injury, there is a conclusive
presumption that the claimant/employee is permanently totally
disabled and no further findings are required.” Id. ¶ 12. We
concluded by stating that “the plain language of the statute
clearly 	establishes 	that 	total 	permanent 	disability 	benefits
awarded pursuant to subsection [(9)] are not subject to, nor
controlled 	by, 	the 	claimant/employee’s 	limitations 	or
employability.” Id.4
¶15 	Wasatch 	makes no 	effort 	to 	distinguish 	Intermountain
Slurry Seal, or to argue that it is inapplicable, and does not ask us
4. More than seventeen years have passed since our decision in
Intermountain 	Slurry Seal, 	and 	in 	that 	time 	span, 	while 	the
legislature has made certain changes to section 34A-2-413 of the
Utah Code, it has not substantively changed the language of
subsection (9), nor has it made any other changes that would
indicate a legislative belief that our opinion in Intermountain
Slurry Seal was inconsistent with legislative intent. Because we
presume that the legislature is aware of judicial interpretations
of statutes, we in turn may presume that the legislature’s choice,
over the course of nearly two decades, not to amend the statute
to supersede Intermountain Slurry Seal indicates an acceptance of
our interpretation. See Rutherford v. Talisker Canyons Fin. Co., 2019
UT 27, ¶ 62, 445 P.3d 474 (noting the significance of the fact that,
“in the years since Clover was decided, the legislature has not
amended 	the 	[relevant 	statute] 	to 	overrule 	the 	holding 	of
Clover”); United States Smelting, Refining & Mining Co. v. Nielsen,
430 P.2d 162, 167 (Utah 1967) (Ellett, J., dissenting) (noting that a
previous holding was twenty-seven years old, and that “the
Legislature by not changing this statute would have given its
tacit 	approval 	to 	the 	interpretation 	placed 	thereon” 	by 	the
previous holding).

Wasatch Electric v. Labor Commission
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to reexamine the holding we rendered in that case.5 Instead,
Wasatch 	makes 	generalized 	arguments 	that 	Benward’s
interpretation of the statute leads to an “absurd result” that
“exceeds the bounds of reasonableness and rationality” and
would result in a “windfall” to Benward. But we are bound by
Intermountain Slurry Seal, and—absent a disavowal or overruling
of that case, something Wasatch does not seek here—we must
follow the holding and rationale of our prior cases.6 See State v.
Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that, “[u]nder the
doctrine of horizontal stare decisis, the first decision by a court on
a particular question of law governs later decisions by the same
court,” that “one panel on the court of appeals owes great
deference to the precedent established by a different panel on
the court of appeals,” and clarifying that “[t]he doctrine of
horizontal stare decisis applies as between different panels of the
court of appeals” (quotation simplified)); see also In re adoption of
B.N.A., 2018 UT App 224, ¶ 22, 438 P.3d 10 (stating that “one
panel of this court is bound to follow the previous decisions of
5. 	Wasatch 	cited 	Intermountain 	Slurry 	Seal 	only 	once 	in 	its
opening brief, in the context of making a passing reference to the
ALJ’s and the Labor Commission’s rulings. And, after Benward
relied 	heavily 	upon 	Intermountain 	Slurry 	Seal 	in 	his 	brief,
Wasatch chose not to file a reply brief.
6. We note, as an aside, that we find the statutory interpretation
analysis in Intermountain Slurry Seal to be not only binding, but
also persuasive. See 7 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law § 83.08 (2014) (stating that “[s]pecial
statutory 	provisions 	may 	supersede 	the 	general 	principles
controlling the relation between medical and wage loss factors in
determining 	total 	disability,” 	and 	that 	“[t]he 	commonest
example of this type of statute is the familiar provision that
certain combinations of losses of members shall be presumed to
constitute total disability”).

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another panel of this court, unless we make a specific decision to
overrule or disavow the earlier precedent”).
¶16 	In this case, there is no dispute that Benward meets the
requirements of subsection (9) for demonstrating permanent
total disability. The parties to this case have stipulated that
Benward’s workplace accident arose out of the course and scope
of his employment with Wasatch, and that, as a result of that
accident, he sustained the loss of both of his feet. And under
subsection (9), Benward need show nothing more. See Utah Code
Ann. § 34A-2-413(9)(a); see also Intermountain Slurry Seal, 2002 UT
App 164, ¶ 11 (stating that a subsection (9) claimant “need show
nothing more than the existence of 	an 	injury listed within
subsection [(9)] and that the injury was the result of an industrial
accident”). He has proven that he was permanently and totally
disabled, and under subsection (9), that status is “final” and does
not change even if Benward is at some point able to return to the
workforce. 	See 	Utah 	Code 	Ann. 	§ 	34A-2-413(9)(b); 	see 	also
Intermountain Slurry Seal, 2002 UT App 164, ¶ 12 (stating that
“[o]nce a subsection [(9)] claimant has established a qualifying
injury, there is a conclusive presumption” of permanent total
disability that is not “controlled by” future “employability”).
CONCLUSION
¶17 	The plain language of the relevant statutory subsection, as
interpreted by this court in Intermountain Slurry Seal, compels the
conclusion that Benward is entitled to permanent total disability
benefits, even if he is now capable of working. To the extent
Wasatch finds that conclusion absurd or unreasonable, Wasatch
would be better served to direct its complaints to the Utah
Legislature. Because we are obligated to apply both the statute
as written as well as our own prior case law, we decline to
disturb the decision of the Labor Commission.